CL 128/5 |
Hundred and Twenty-eighth Session
Rome, 20 - 25 June 2005
REPORT OF THE SEVENTY-EIGHTH SESSION OF THE COMMITTEE ON CONSTITUTIONAL AND LEGAL MATTERS (CCLM)
Rome, 5-6 April 2005
II. REGISTERED PARTNERSHIPS AND SAME-SEX MARRIAGES
III. AMENDEMENT TO THE AGREEMENT FOR CONTROLLING THE DESERT LOCUST IN THE CENTRAL REGION
IV. AGREEMENT BETWEEN THE FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS (FAO AND THE WORLD INTELLECTUAL PROPERTY ORGANIZATION
1. The Seventy-eighth Session of the Committee on Constitutional and Legal Matters (CCLM) was held on 5-6 April 2005. All the Members of the Committee, with the exception of Guatemala, as listed below, were represented:
Canada, Czech Republic, France, Iraq, Niger and Philippines.
2. The Committee considered document CCLM 78/2 “Registered partnerships and same sex-marriages” and noted that it had been prepared in response to its earlier recommendation, made at its session of October 2004, endorsed by the Council at its Hundred and Twenty-seventh Session, held from 22 to 27 November 2004, that the CCLM should discuss the issue and prepare a proposal at its Spring session of 2005, thus allowing the Organization and its Members to take an active approach on the issue at the session in June 2005 of the Council. The Committee noted also that it had already considered the matter in October 2003 and, at that time, had recommended that the Organization should follow closely the discussions within the United Nations system with a view to reaching a common position in that regard. This recommendation had also been endorsed by the Council, at its Hundred and Twenty-fifth Session, in November 2003.
3. The Committee expressed satisfaction at the comprehensive nature of the document in line with its earlier request. The document provided information on the relevant provisions of the Administrative Manual, the position of the United Nations and that of the other organizations of the system, the relevant judgments delivered by the United Nations Administrative Tribunal and the Administrative Tribunal of the International Labour Organization and reviewed the status of past and current claims before FAO.
4. The Committee examined in detail the position at the United Nations, as defined in Secretary-General’s Bulletin ST/SGB/2004/13 entitled “Personal status for purposes of United Nations entitlements” of 24 September 2004, attached to this Report as Appendix I, as well as a number of related facts including General Assembly resolution 58/285 of 8 April 2004 and judgment No 1183 of the Administrative Tribunal of the United Nations, delivered on 23 July 2004 in the case “Adrian against the Secretary-General of the United Nations”. The Committee noted that, at the United Nations, family status for the purposes of entitlements under the Staff Regulations and Rules was being made in all cases on the basis of the long-established principle that matters of personal status are determined by reference to the law of nationality of the staff member concerned and that this ensured respect for the social, religious and cultural diversity of the Member States and their nationals. On this basis, a marriage recognized as valid under the law of the country of nationality of a staff member did qualify that staff member to receive the entitlements provided for eligible family members. Similarly, a legally recognized domestic partnership also qualified that staff member to receive the entitlements provided for eligible family members, subject to verification of the validity and specific regime of the relevant contract. The CCLM noted that this was the policy applicable to all United Nations staff members including the staff members of the United Nations Programmes and Funds. The Committee further noted that the United Nation’s policy was made applicable at the United Nations/FAO World Food Programme through a Human Resources Directive reproducing the content of the Secretary-General Bulletin.
5. The CCLM noted that the Specialized Agencies were generally in favour of the recognition of a spouse united in a same-sex marriage for the purpose of entitlements and, in an increasing number of cases, were already extending to the concerned staff members the relevant benefits. The Committee took the view that, given the position at the United Nations, the situation in the Specialized Agencies was evolving rapidly. In the same vein, the CCLM noted that the jurisprudence of the Administrative Tribunal of the International Labour Organization, as set out in a judgment of 3 February 2003, delivered by three votes out of five, with two dissenting opinions, establishing “a link between the word spouse and the institution of marriage, whatever form it may take”, was likely to evolve in the near future in view of a number of claims being made in organizations having accepted the jurisdiction of the Tribunal. In this particular connection, the CCLM was apprised of a recent recommendation of the Appeals Committee on a claim for spousal benefits where the Appeals Committee recommended that the Director-General should issue a bulletin consistent with that adopted by the Secretary-General.
6. The CCLM underlined that a common approach to the matter among all organizations of the United Nations system was not only highly desirable, but also in accordance with the very concept of a United Nations Common System of salaries and allowances, including benefits from the United Nations Joint Staff Pension Fund.
7. Having reviewed all pertinent considerations and received such clarifications as requested and taken due note of the request by the Council that the Organization and its Members should take an active approach to the issue at its June 2005 Session, the Committee recommended to the Council the adoption of the following decision:
“In connection with the consideration of the report of the Seventy-eighth Session of the CCLM, the Council recalled the fundamental and long-established principle that the personal status of staff members for purposes of FAO’s entitlements should continue to be made by reference to the law of nationality of the staff member concerned. The Council emphasized that such a reference to national law, as done by the Secretary-General of the United Nations, would continue to ensure respect for the social, religious and cultural diversity of the Member Nations and their nationals and, indeed, was the only method whereby the sovereignty of all States could be respected.
Accordingly, the Council requested the Director-General to adopt an administrative directive consistent with that issued by the Secretary-General of the United Nations (ST/SGB/2004/13 “Personal status for purposes of United Nations entitlements” of 24 September 2004), as soon as practicable after the present Session and, in any case, not later than the Hundred and Twenty-ninth Session of the Council. The administrative directive should underline the cardinal principle that the personal status for purposes of entitlements under the Staff Regulations and Rules has been determined, and should continue to be determined, by reference to the law of nationality of the staff member concerned. When a staff member has more than one nationality, the Organization would continue to recognize, under applicable rules, the nationality of the State with which the staff member is most closely associated for purposes of the Staff Regulations and Rules.
The Council expressed the view that the proposed administrative directive would not involve changes to the Staff Regulations but would merely constitute an interpretation of existing provisions, which will take effect as from the date of publication of the administrative directive. The Council also asked the Director-General to take such internal measures as required for the implementation of its decision.”
III. AMENDMENT TO THE AGREEMENT FOR CONTROLLING THE DESERT LOCUST
IN THE CENTRAL REGION
8. The CCLM recalled that the Agreement for the Establishment of a Commission for Controlling the Desert Locust in the Near East had been approved by the Forty-fourth Session of the FAO Council (July 1965) under Article XIV.2(a) of the FAO Constitution and submitted to Members for acceptance. In accordance with Article XIX.1 thereof, the Agreement entered into force on 21 February 1967.
9. The CCLM observed that the objectives of the Agreement include planning and promoting joint actions for the survey and control of the desert locust in the Region wherever required as well as, when adequate resources are available, assisting national, regional or international action relating to the control or survey of the desert locust.
10. The CCLM noted that the Agreement was amended in 1977 and subsequently in 1995. Among the amendments made in 1995, the name of the Commission was changed to “Agreement for the Establishment of a Commission for Controlling the Desert Locust in the Central Region” to reflect the enlargment of its field of action.
11. The CCLM further noted that the Commission, at its Twenty-fourth Session (April 2004) had proposed, in conformity with Article XIV of the Agreement, that Article IX of the Agreement be amended so that the number of the members of the Executive Committee of the Commission be increase to 7. The Commission was of the opinion that, in view of the increased Commission’s membership, the amendment would allow greater efficiency in carrying out the Commission’s functions.
12. The CCLM recalled that, as concerns the financial aspect of the proposed amendment, Article XIII.2 of the Agreement provides that “Expenses incurred by the representative of each Member of the Executive Committee when attending sessions of the Executive Committee shall be borne by the Commission” and that Article XIII.1 establishes that “The expenses of the Commission shall be paid out of its budget…”.
13. The CCLM finaly observed that Article XIV.3 of the Agreement provides that: “Any amendment… shall require the approval of the Council of the Organization unless the Council considers it desirable to refer the amendment to the Conference of the Organization for approval”.
14. The CCLM concluded that the proposed amendment was acceptable from a legal point of view and recommended that the following text be submitted to the Council for approval:
“Article IX - The Executive Committee
1. There shall be an Executive Committee composed of seven Members of the Commission, elected by the Commission at each of its regular sessions. Members of the Executive Committee shall be eligible for re-election. The representative of each Member of the Executive Committee should preferably be a locust specialist. The Chairman of the Executive Committee shall be elected by the Commission from amongst the representatives of Members of the Committee. He shall hold office until the next regular session of the Commission and shall be eligible for re-election.”
15. The CCLM considered document CCLM 78/4 entitled “Agreement between the Food and Agriculture Organization of the United Nations (FAO) and the World Intellectual Property Organization (WIPO)”. The Committee noted that, in recent years, particularly since the conclusion of the World Trade Organization/Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), questions regarding intellectual property have become of increasing importance in the food and agriculture sector. It noted, in particular, that some forms of intellectual property were of direct relevance to the sector, including patents, sui generis plant variety protection, geographical indications and protection of undisclosed information.
16. The CCLM took note also that WIPO and FAO had cooperated extensively in the past, in particular regarding genetic resources for food and agriculture. WIPO has followed closely developments in FAO’s Commission on Genetic Resources for Food and Agriculture, and has reported to regular meetings of the Commission on its relevant activities. WIPO has also regularly attended the negotiations that led to the adoption, on 3 November 2001, of the FAO International Treaty on Plant Genetic Resources for Food and Agriculture.
17. The CCLM reviewed the text of the draft agreement and, after the introduction of some modifications, found it to be consistent with the Basic Texts of the Organization, in particular with Sections M “Cooperation with International Governmental Organizations” and N “Guiding Lines Regarding Relationship Agreements between FAO and Intergovernmental Organizations”. The CCLM recommended that the draft agreement between WIPO and FAO, attached to this report as Appendix II, be submitted to the Council at its Hundred and Twenty-eighth Session in June 2005 for approval and, subsequently, to the Conference at its Thirty-third Session in November 2005 for confirmation.
24 September 2004
Personal status for purposes of United Nations entitlements
1. The practice of the Organization when determining the personal status of staff members for the purpose of entitlements under the Staff Regulations and Rules has been done, and will continue to be done, by reference to the law of nationality of the staff member concerned. When a staff member has more than one nationality, and in accordance with applicable rules, the Organization recognizes the nationality of the State with which the staff member is most closely associated.
2. Requests relating to the determination of the personal status of staff members in connection with their entitlements will be submitted by the Secretariat for verification by the Permanent Mission to the United Nations of the country of nationality of the staff member concerned. Once the Mission has verified that the status in question is legally recognized under the law of that country for the purposes of granting benefits and entitlements, the Secretariat will take action in accordance with that verification.
3. Secretary-General’s bulletin ST/SGB/2004/4 is hereby abolished.
4. The present bulletin shall enter into force on 1 October 2004.
(Signed) Kofi A. Annan
The Food And Agriculture Organization of the United Nations (“FAO”) and the World Intellectual Property Organization (“WIPO”), referred to in this Agreement jointly as “the organizations,”
Recognizing the constitutional responsibility of the FAO to provide a neutral forum where all nations can meet to discuss and formulate policy on major food and agriculture issues; provide independent advice on agricultural policy and planning; collect, analyze, interpret and disseminate information relating to nutrition, food, agriculture, forestry and fisheries; and give practical help to developing countries through technical assistance projects;
Recognizing the constitutional objective of WIPO to promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization, and to ensure administrative cooperation among the Unions established by international treaties administered by WIPO;
Aware of the growing use of intellectual property rights in the food and agriculture sector and the importance of taking into account the specific nature and needs of agriculture, including fisheries and forestry, in the development and implementation of relevant intellectual property policies;
Noting the potential of agricultural biotechnologies, including technologies protected by intellectual property rights, to provide powerful tools for sustainable development of agriculture, fisheries and forestry;
Noting the role of intellectual property rights in the creation, development and dissemination of agricultural technologies, including biotechnologies, and in facilitating access to, and transfer of, these technologies;
Recognizing the potential, including in developing countries, to enhance the role of intellectual property rights in developing and promoting distinctive agricultural products and adding value to agricultural products, including those produced by traditional and local agricultural methods;
Recognizing the FAO Committee on Agriculture as an intergovernmental forum that provides guidance to FAO on agricultural policies, including on biotechnology, and that the FAO Commission on Genetic Resources for Food and Agriculture provides an intergovernmental forum for negotiations and oversees the development of international agreements, undertakings, codes of conduct or other instruments relating to, genetic resources of relevance to food and agriculture, and to monitor the operation of such instruments;
Having regard to the indication by WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, that WIPO should address the intellectual property issues before the Intergovernmental Committee in conjunction with the Secretariat of the Convention on Biological Diversity and the FAO Secretariat, to ensure that WIPO’s work continues to be consistent with and complementary to the work of these organizations;
Aware of the growing importance of genetic resources and, in particular, genetic resources for food and agriculture, including in the context of intellectual property rights, and of the importance of ensuring the conservation and sustainable utilization of genetic resources for food and agriculture;
Convinced of the importance of the International Treaty on Plant Genetic Resources for Food and Agriculture, adopted by the Conference of the FAO on November 3, 2001, and which came into force on June 29, 2004, and desiring to cooperate within the context of their respective mandates in the implementation of the Treaty;
Recognizing the need for increased coordination and dialogue between the intellectual property and food and agriculture sector through collaboration among the agencies and authorities responsible at the national and international levels for agriculture and intellectual property respectively, and the need for greater development and dissemination of practical skills and awareness relevant to the effective use of intellectual property mechanisms by the food and agriculture sector, with the aim of ensuring effective policy-making and knowledge management for the public benefit;
Desiring to ensure harmony and synergy in the work of the two organizations, to better serve their respective Members;
Agree to act in close cooperation, on matters of mutual interest, with a view to harmonizing their efforts towards greater effectiveness, as far as possible, having due regard to their respective objectives, mandates and functions, as described below.
1. Each organization shall invite the other organization to participate, without the right to vote, in the deliberations of its governing bodies and of other bodies where matters of particular concern to the other organization are considered, and in which it has indicated that it has an interest. Representatives of the organization so invited shall be afforded full opportunity to present its views on matters within the scope of its activities and mandate.
2. In this context, and subject to such arrangements as may be necessary to safeguard confidential matters, the organizations shall cooperate in the preparation of official documents, by making available drafts of the relevant documents, and providing technical advice and input, where appropriate and feasible.
Exchange of Information
1. The organizations shall regularly exchange information regarding their relevant activities and positions.
2. Each organization shall inform its Members of relevant activities of the other organization or, as appropriate, provide an opportunity for the other organization to do so.
3. The organizations shall keep each other informed of their relevant activities and positions in other organizations and forums and, as far as possible, coordinate their positions.
Fields of Cooperation
Cooperation under this Agreement shall include:
(a) The development of joint activities to address issues of mutual relevance, including coordinating and conducting joint studies and joint seminars and workshops, including on public policy options relating to the interaction between intellectual property and the food and agriculture sector;
(b) Where appropriate, the coordination of databases, and the provision of access through their websites to the relevant information systems of the other organization and, where appropriate, the coordinated development of such information systems;
(c) The provision of relevant technical information and input to support the work of the other organization, including in response to requests from that organization’s Members;
(d) Where appropriate, collaboration in providing technical assistance, including capacity building, to developing countries and countries with economies in transition;
(e) Coordination of work on such matters as intellectual property-related aspects of:
- Farmers’ Rights and traditional knowledge;
- Agricultural biotechnology;
- Genetic resources for food and agriculture;
- Promotion of innovation and the effective capture of benefits from public investment in research;
- Access to, and transfer of, technology in the food and agriculture sector;
- Plant protection and production;
- Use of distinctive signs (trademarks and geographical indications) in the food and agriculture sector;
- Ethical issues in food and agriculture;
- Information and analysis on patterns and trends of intellectual property use in the food and agriculture sector;
- Creation, development and dissemination of agricultural information and data, particularly on the Internet and on CD-ROM.
(f) Technical cooperation, as appropriate, on issues relevant to international instruments under the aegis of the two organizations, including:
- the International Treaty on Plant Genetic Resources for Food and Agriculture;
- the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade;
- the International Plant Protection Convention;
- the Codex Alimentarius;
- the Paris Convention for the Protection of Industrial Property;
- the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure;
- the Patent Cooperation Treaty;
- the Patent Law Treaty;
- other relevant policy documents developed or administered by the organizations which address matters of mutual interest.
Joint programmes of work
1. In order to promote cooperation within the context of this Agreement, and in order to develop joint activities to address issues of mutual relevance, either the FAO or WIPO may propose joint projects aimed at specific objects of cooperation. Such joint programmes of work shall specify the respective responsibilities and financial obligations of the FAO and WIPO, and specify any other sources of funds, as well as staffing responsibilities. In implementing such joint programmes of work, the FAO and WIPO may jointly agree on cooperation with other organizations and agencies, including funding agencies.
2. If agreed between the Parties, such joint programmes of work may be dated and numbered serially, signed by both organizations and regarded as annexes to this Agreement.
3. Such joint programmes of work may be modified by the written mutual consent of the FAO and WIPO.
4. Where necessary within the context of agreed joint activities or programmes of work, either organization may second staff to the other organization, and make other administrative arrangements.
1. Any minor and ordinary expenditure relating to the implementation of this Agreement shall be borne by the respective organization.
2. If the cooperation proposed by one of the organizations to the other in accordance with this Agreement entails expenditure beyond minor and ordinary expenditures, the two organizations shall consult to determine the availability of the resources required, the most equitable way of meeting such expenditure and, if resources are not available, the most appropriate ways to obtain the necessary resources. If necessary and if agreed by the two organizations, they may jointly seek financial resources from donor institutions for their cooperation activities and joint programmes of work.
Implementation of this Agreement
The Director-General of the FAO and the Director-General of WIPO may make the arrangements necessary for ensuring satisfactory implementation of this Agreement.
Modification of the Agreement
Subject to the provisions of Article X below, this Agreement may be modified by the written mutual consent of the organizations.
Either organization may terminate this Agreement, subject to six months’ written notice. Termination shall not affect obligations previously entered into specifically for the conduct of joint programmes of work implemented under Article IV of this Agreement.
Agreements with other Organizations
This Agreement is without prejudice to agreements concluded by either FAO or WIPO with other organizations or programmes within the United Nations System.
Entry into Force
This Agreement and any modification thereto shall enter into force once the pertinent constitutional processes of both organizations have been completed.
On behalf of the Food and Agriculture
On behalf of the World Intellectual